Islamic judges are not about to take over the West. It is still worth enforcing the supremacy of secular law

SHARIA, the Islamic code of behaviour and law, has become an electric term in the language of politics. A Republican candidate for the US Senate has claimed bizarrely that two American districts are already living under it. Newt Gingrich, a former House speaker, reckons America needs a federal law to establish that sharia may not be recognised by any court. Such legislation would only be prudent, his supporters suggest, when Islamic law is trying to infiltrate every corner of American life. Elena Kagan, a new Supreme Court judge, has been accused of crypto-sharia tendencies because her alma mater, Harvard Law School, has an Islamic finance project.

The term is bandied about in Europe, too. Germany's chancellor, Angela Merkel, recently felt it necessary to assure her fellow Christian Democrats that, whatever steps might be needed to help immigrants, “it's the constitution that applies, not sharia.” From the other side, the word elicits knee-jerk protectiveness among Muslims. When 40% of Muslim Britons told a pollster they liked the idea of sharia being applied in parts of Britain, that was not a demand for Saudi-style beheading, but a gut defence of a faith they see as under threat.

All the more reason for calm thinking about what sharia means, and the dilemmas it poses (see article, article). It can refer to many things, ranging from a pious way of life to a system of corporal and capital punishment, laid down in Islamic law but practised in only a few places. It can also refer to the ideas underpinning Islamic finance (which eschews interest)—and, most significantly for public policy, to a form of family law.

Contrary to some hysterical talk, nobody seriously suggests the use of Islamic penalties in any democracy. Nor is there any reason to fear Islamic finance: a campus discussion about zero-coupon bonds does not mean usurers will be flogged in Harvard Yard. Nor can anybody object if two citizens settle a commercial dispute on Islamic lines, or any other principles to which both freely adhere. In the English-speaking world there is a custom of arbitration, which has created a space in which religion-based arbitration services are accepted, offering Jews, Christians and Muslims a simple, cheap (and from their point of view, divinely blessed) way to settle disputes.

The real difficulty with Islamic law in the West comes where it pertains to family matters: the maintenance of dependants, divorce settlements and so on. There are two main concerns. First, aspects of Islamic family law are at odds with the values of modern democracy: men inherit more than women and often have the edge in custody disputes. Second, many people worry that Muslim women will not go to arbitration of their own free will. For a woman trapped in a violent marriage, there may be pressure from her peers to use Islamic procedures, although state law would serve her better.

Bones of contention

The first of these difficulties is hard to tackle without infringing religious freedom. If a Muslim woman (or for that matter an Orthodox Jewish woman) freely accepts an “unfair” deal because it is intrinsic to her religion, that should not be the state's business. But the state should deal with the second problem—freedom of will—by making clear that any voluntary agreement has no legal force (so a party can change his or her mind). In a democracy, the stress must be on the primacy of the law of the land, and on ensuring that all citizens, especially the vulnerable, have access to their rights, no matter what they say before an imam, rabbi or priest.

Two Canadian provinces, Ontario and Quebec, have laws denying legal standing to religious arbitration procedures. Other countries should revise their laws to ensure that anybody who opts for religious arbitration of a family matter can opt out at any stage, or appeal to a secular court. That may not stop some religious people feeling torn between their faith and the law of the land. But it would clarify the differences between real dilemmas posed by sharia, and irresponsibly invented ones.